FACTUAL BACKGROUND AND OVERVIEW

Introduction

[1] The applicant, Mohanranjan Navaratnam, seeks an order of certiorari to quash the decision made on 7 October 2021 by Speyer J. of the Ontario Court of Justice dismissing his application for a mistrial and re-election to a judge and jury trial at the Superior Court of Justice. He argues that in ruling as she did, the trial judge committed a breach of ss. 7 and 11(f) of the Charter and acted in excess of her jurisdiction. He also requests an order of mandamus directing the trial court judge to permit him to re-elect to trial by judge and jury in the Superior Court of Justice.

[2] In response, the Crown moved to ask this court to summarily dismiss the application, arguing that this court has no jurisdiction to order certiorari. The Crown submits that application is an interlocutory appeal and not permitted by law.

[3] After hearing submissions from the parties, I granted the Crown’s application to summarily dismiss the applicant’s request for certiorari and mandamus. These are my reasons for doing so.

Background Facts

[4] The applicant is being tried for sexual assault at the Ontario Court of Justice, having elected a judge alone trial of that court on 18 November 2019. The case has a lengthy history of delay as a result of several pre-trial motions and a prior certiorari application brought by the applicant in respect of the trial judge’s ruling on a constitutional issue.

[5] This application arises from the production of an occurrence report (“the Report”) generated on 1 July 2019 where the complainant contacted the police alleging the applicant had breached his bail conditions by approaching her in a bar. When police investigated, they spoke to the applicant who told them it was the complainant who had approached him, rather than the other way round. This information appeared to be confirmed by a bartender who refused to identify herself or provide a formal statement. The inference to be drawn from the Report was that the complainant was seeking to falsely implicate the applicant. The complainant failed to return police calls or emails when they followed up to obtain a statement. Without further evidence, the police took no additional action.

[6] The Report was not provided to the applicant until after he brought an application on 21 January 2021 seeking any occurrence reports relating to criminal complaints made by the complainant. A subpoena was served on the Toronto Police Service on 1 February 2021, and on 8 February 2021, the records were provided to the complainant’s counsel for review in accordance with directions made by the trial judge. The matter was due to be heard on 4 August 2021.

[7] On 12 July 2021, the complainant’s counsel brought the Report to the attention of the Crown and it was disclosed to the applicant’s counsel on 16 July 2021.

[8] On 19 August 2021, counsel for the applicant filed an application for a mistrial in addition to a request for an order that he be permitted to re-elect his mode of trial. He argued that the Report was first party disclosure which the Crown was obliged to provide prior to his election in November 2019. As a result, the delayed disclosure breached his s. 7 Charter right to make full answer and defence, and his s. 11(f) right to be tried by judge and jury.

[9] Speyer J. dismissed the application. She found the Report was not first party disclosure but fell within the confines of the s. 278.3 framework which required the applicant to make a third party records application. Speyer J. noted the Crown was forbidden from disclosing the report without the complainant’s consent under s. 278.2 of the Code. Moreover, the judge found that no prejudice had been occasioned to the applicant as he knew of the incident contained in the Report and could have made the application for disclosure at an earlier stage in the proceedings.

[10] The applicant submits that the trial judge violated his ss. 7 and 11(f) Charter rights by failing to grant a mistrial and permit his re-election in front of a jury at the Superior Court of Justice. He says that this error was jurisdictional and seeks certiorari as a remedy.

[11] The Crown submits that this application is, in effect, an interlocutory appeal which is prohibited by the jurisprudence, most recently by the Supreme Court of Canada’s decision in R. v. Awashish, 2018 SCC 45, [2018] 3 S.C.R. 87. As noted, it asks the matter be summarily dismissed.

[12] When this matter was set down for hearing in this court, it was for the narrow purpose of determining whether the extraordinary remedies sought by the applicant were available in the midst of his ongoing trial. For the following reasons, I find that they are not.

ANALYSIS

[13] In Awashish, the Supreme Court of Canada reviewed the governing principles relating to extraordinary remedies. At para. 10, Rowe J., explained the limits of these remedies in the following way:

Criminal appeals are statutory; with limited exceptions, there are no interlocutory appeals (Criminal Code, s. 674; Mills v. The Queen, 1986 CanLII 17 (SCC), [1986] 1 S.C.R. 863, at p. 959; R. v. Meltzer, 1989 CanLII 68 (SCC), [1989] 1 S.C.R. 1764, at p. 1774; Dagenais v. Canadian Broadcasting Corp., 1994 CanLII 39 (SCC), [1994] 3 S.C.R. 835, at p. 857). There are a few statutory exceptions; and the extraordinary remedies, notably certiorari, provide relief in narrow circumstances. The general rule is that "criminal proceedings should not be fragmented by interlocutory proceedings which take on a life of their own" (R. v. DeSousa, 1992 CanLII 80 (SCC), [1992] 2 S.C.R. 944, at p. 954). Fragmenting criminal proceedings by permitting interlocutory appeals risks having issues decided without the benefit of a full evidentiary record - a significant source of delay and an inefficient use of judicial resources (R. v. Johnson (1991), 1991 CanLII 7174 (ON CA), 3 O.R. (3d) 49 (C.A.), at p. 54).

[14] At para. 11, the court added that the “use of certiorari is therefore tightly limited by the Criminal Code and the common law so as to ensure that it is not used to do an ‘end-run’ around the rule against interlocutory appeals”.

[15] In R. v. Amiri, 2021 ONCA 902, at para. 5, the Court of Appeal for Ontario made clear that certiorari was available only in criminal cases if a provincial court judge has made a jurisdictional error by failing to observe a mandatory provision of a statute or has acted in breach of the principles of natural justice.

[16] The applicant advances the position that his Charter rights were breached by the trial judge when she denied his mistrial application. Further, he submits that the judge caused a breach of natural justice by not allowing him to re-elect his mode of trial. These rulings, says the applicant, constitutes jurisdictional error and are therefore subject to review by way of certiorari.

[17] The central issue in this case is the finding by Speyer J. that the occurrence report was not first party disclosure but subject to the Criminal Code regime relating to third party disclosure. By making this finding Speyer J. held the applicant was not entitled to the Report until after he had made the proper application. Accordingly, the timing of the Report’s provision to the applicant was not a breach of his Charter rights. Moreover, the judge also found that there could be no prejudice to the applicant relating to the timing of this disclosure because he knew of these events in July 2019, well before he elected trial by judge alone at the Ontario Court of Justice. Based on these findings, the trial judge dismissed the applicant’s mistrial application.

[18] The applicant relies on R. v. Ruston (1991), 1991 CanLII 2758 (MB CA), 71 Man.R. (2d) 49 (C.A.); R. v. T. (L.A.) (1993), 1993 CanLII 3382 (ON CA), 14 O.R. (3d) 378, (C.A.); and R. v. Barra, 2021 ONCA 568, 157 O.R. (3d) 196, as authorities that support the proposition that an accused may bring an application for certiorari based on mistrial rulings made by a trial judge in the course of a trial. I do not agree.

[19] T. (L.A.) was a sexual assault case which dealt with the Crown’s failure to disclose a statement provided by the complainant’s sister revealing that the complainant had told her that the sexual assault had been committed by another person. The court held that the judge’s failure to declare a mistrial was a legal error because the judge did not apply the proper legal test in deciding the mistrial application.

[20] A similar conclusion was reached in Barra, where the Crown sought to use late disclosed material in reply to a document introduced in the defence case. When the defence sought a mistrial, the trial judge dismissed the application excluding the evidence. Again, the court found that the judge had misapplied the principles relating to the mistrial application because he had focussed too narrowly on the evidentiary value of the material as opposed to the impact on the fairness of the trial.

[21] Neither of these cases assist the applicant; in both cases the court found that the failure to grant a mistrial through the misapplication of the correct test amounted to a legal rather than jurisdictional error.

[22] The court in Ruston did find jurisdictional error in a trial judge’s refusal to permit an accused’s re-election for a jury trial. There, after the accused had elected to be tried by judge alone, the Crown notified him of its intention to call similar fact evidence. The accused sought to change his election but his application was dismissed by the trial judge. The Manitoba Court of Appeal held that the judge’s ruling raised a jurisdictional issue and an interlocutory appeal was therefore permissible.

[23] The applicant submits that this a “complete answer” to the Crown’s assertion that certiorari is not available in this case.

[24] The problem with the applicant’s position is that the Court of Appeal for Ontario in R. v. Kerzner (1991), 1991 CanLII 11726 (ON CA), 3 O.R. (3d) 272 (C.A.), at para. 6, explicitly rejected the position taken in Ruston. Other courts have taken the same view: see e.g. R. v. Litchfield (1995), 1995 ABCA 352, 174 A.R. 171 (C.A.); R. v. Rossi (1993), 17 C.R.R. (2d) 335 (B.C. S.C.); and R. v. Hammerbeck (1992), 1992 CanLII 1483 (BC CA), 40 R.F.L. (3d) 145 (B.C. C.A.).

[25] Moreover, Ruston pre-dates Awashish and in my view has been overridden by that decision, even notwithstanding the decision in Kerzner.

[26] I have reviewed Speyer J.’s reasons for dismissing the mistrial application. It is clear that the rulings complained of by the applicant are decisions that Speyer J. was entitled to make and fell entirely within her jurisdiction.

[27] The applicant’s arguments that they were “unreasonable” reflect the fact that they can only be attacked as legal, and not jurisdictional, errors. Accordingly, the remedies sought by the applicant are unavailable.

[28] The correct course of action is for the trial to complete at the Ontario Court of Justice. If the applicant is convicted he may appeal on the grounds that he seeks to argue in this hearing.

[29] Accordingly, I find that this court is without jurisdiction to hear the remedy sought by the applicant and the Crown’s summary dismissal motion is granted. The trial is ordered to continue at the Ontario Court of Justice.

S.A.Q. Akhtar J.

Released: 23 December 2021

COURT FILE NO.: CR-21-30000143-00MO

DATE: 20211223

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

HER MAJESTY THE QUEEN

– and –

MOHANRANJAN NAVARATNAM

REASONS FOR JUDGMENT

S.A.Q. Akhtar J.

R. v. Navaratnam, 2021 ONSC 8458

Case Summary

FACTUAL BACKGROUND AND OVERVIEW

Introduction

Background Facts

ANALYSIS

Judge

Counsel

Parties

Areas of Law

Fact Patterns

Issues

Statutory Provisions 5

Legal Tests 1

Legislation 2